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SECT. II.

Cases in which the Succession to real or heritable, and also as to personal Estate, was involved in the same Decision. THE first of these mixed cases, in point of date, which

knows it personally; he married a lady born under English law, and who had resided all her life in and near London: he had to make oath that she had lived in the parish of Acton for a certain time, and he entered into a contract of marriage in the English form; but that had no more effect in fixing his domicil than the winds of heaven. Capt. Wallace, having been a Scotchman in the army, did not acquire any domicil by marrying there, but returned to Edinburgh, where he sold out of the army, lived here for some time, and died here. There can therefore be no doubt that he died here, domiciled as a Scotchman. "As to his son Robert Alexander Paterson Wallace, it is admitted that he was born in Edinburgh, and went to England with his mother. Even had there been no contract made before he was permitted to accompany her, the Lord Ordinary could have no doubt that, had he died in pupilarity, his legal domicil of Scotland could not have been changed by his residence in England; a pupil has no persona standi, has no will in law, and he cannot act for himself— could not fix his domicil -cannot make a will. But the matter is quite changed when he passes the years of pupilarity. As a domiciled Scotchman he is entitled to act for himself, with the consent of his curators; he is entitled to live where he pleases; for curators have no controul over his person. Hence,' says Erskine (b. i. tit. 7. s. 14.), also, though the natural person of a pupil is under the power either of his tutor or next cognate, yet a curator cannot claim the custody of a minor's person, who hath attained the age of puberty, or prescribe to him where he must reside. A minor can make a will disposing of his personal succession, and of course can do so by change of domicil.' The defenders seem totally to have lost sight of this principle. They state their case as if Mr. Hathorn could have prevented Robert Alexander Wallace from living in England; as if he placed him there, and was at the expense of his education there; when it is quite plain, that it was Mr. Hathorn's indispensable duty to advance the minor's own funds to him, for a suitable and reasonable maintenance and education. Still, residence merely for education may be questionable how far it constitutes a domicil to govern succession. But when education is over, when a man attains majority, and still resides in England, making only short visits to Scotland; having no house of his own in which he lives in Scotland, and dies in England in a house of his own; - the Lord Ordinary confesses that he thinks that there is

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occurred after the decision in the case of Bruce v. Bruce, was the important case of Balfour v. Scott. (1)

David Scott, of Scotstarvet, was a Scotsman born, and proprietor of the estate of Scotstarvet in Scotland. This estate had been strictly entailed by his father, but David Scott had reduced this entail by an action in the Court of Session, as in fraudem of his father's marriage settlement, by which the estate was destined to him without being entailed. He had succeeded to this estate in 1767; in 1774 he removed to London, where he took the lease of a house, and also a lease of chambers in Gray's Inn. Before he left Scotland he had sold off the chief part of the

little room for doubting what must be held to be his domicil. From the admitted facts in this case, the question appears to have been fairly tried in a competent court in England; and a question may arise, how far it is proper or competent to try it again here; and whether an appeal against the English judgment would not be the mode to obtain redress.

"Perhaps, as there has been a confirmation here, and no reduction of it has been brought, the decree of the English court is to be considered as a foreign decree, to which effect is not to be given if it can be shown to be wrong. But this is a doubtful and difficult matter, where the error lies entirely on a point of law. Was the confirmation here posterior to the English decree? Neither the one nor the other has been transmitted to the Lord Ordinary.

"3d December, 1827. The Lord Ordinary appoints the cause to be inrolled in his note of motions, and parties to attend by counsel to close the record."

The proceedings in England to which Lord Cringletie referred, were those in the Prerogative Court of Canterbury, relative to the granting of letters of administration to the effects of the deceased situated in England. These were granted to the maternal grandfather. The questions made in that court are noticed in a subsequent chapter. The paternal aunt had obtained a confirmation in Scotland, without any

contest.

The matters in dispute between the parties were settled by compromise, and the proceedings in the Court of Session were withdrawn; so that no final judgment was pronounced on this important case.

(1) Fac. Coll., 15th Nov. 1787, Morrison, 2379. 4617. House of Lords, 11th April, 1793.

furniture in his mansion house in that country. He continued in London till the time of his death, having visited Scotland only once or twice during the last seven or eight years of his life; occupying himself chiefly in attending to his property in the public funds, which was considerable. He held a public office in Scotland (m), but this was a sinecure office, and managed by a deputy. He died in London, in February 1785, a bachelor and intestate.

At the time of his death his property consisted of his estate of Scotstarvet, of the annual value of about 1500l.; some personal estate of inconsiderable value in Scotland; and personal estate in England, chiefly vested in the public funds and in government securities, to the amount of 60,000l. and upwards. His next of kin at the time of his death were Henrietta, Lucy, and Joanna Scott (n), daughters of his brother, General John Scott, deceased; and John Hay Balfour, Mrs. Lucy Moncrieff, and Mrs. Butler, children of his sister, Mrs. Elizabeth Hay, deceased.

Henrietta, the eldest Miss Scott, succeeded to the estate in Scotland, which was settled upon the eldest heir female without division by a deed of her grandfather, the father of the last David Scott of Scotstarvet; and it came to be a question, whether she, taking this estate in Scotland, could also claim a share of the personal estate of her late uncle, David Scott, as one of his next of kin.

All parties had joined in granting a power of attorney to John Way, esquire, by virtue of which he obtained letters of administration of the personal estate of the late David Scott, in the Prerogative Court of Canterbury; and, in this character, paid certain sums of money to Henrietta Scott. Mr. Hay Balfour, Mrs. Moncrieff, and

(m) It is understood that he was director of the Chancery.

(n) Afterwards respectively Duchess of Portland, Lady Doune, and Viscountess Canning.

Mrs. Butler, the children of David Scott's sister, thereupon brought an action in the Court of Session against Miss Scott and her guardians, concluding to have it found that she could take no part of the personal estate, either in Scotland or in England, without collating the heritage.

Miss Scott contended, 1st, That the doctrine of collation did not rule in collateral succession, but was confined to the case of the succession of descendants: 2d, That, as she took the real estate in Scotland under the deed of her grandfather, she was not obliged in such case to collate it, to enable her to take a share of the personal estate of her uncle: 3d, That the personal estate, being situated in England, was subject to distribution by the law of that country, where collation did not take place.

The pursuers contended, on the other hand, 1st, That according to the opinions of the institutional writers, and repeated decisions of the courts, it was clear that collation took place as well in collateral succession, as in the succession of descendants: 2d, That Miss Scott was heir alioqui successura to her uncle, as to one third of the real estate, and therefore bound to collate, though she took under the deed of her grandfather: And, 3d, That the law of the domicil must regulate in this matter, and that Mr. Scott was to be considered as having had his domicil in Scotland at the time of his death.

The Court, on the 16th November 1787, and 17th June 1788, found, "that Miss Henrietta Scott was not entitled to claim any part of the executry of her uncle, David Scott of Scotstarvet, without collating his heritable estates to which she succeeded as heir; and that the succession to the said David Scott's personal estate in England fell to be regulated by the law of England; and therefore, in so far as respected it, assoilzied the defender." At the time when this decision was given, it was universally understood

by Scotch lawyers (o), that the lex loci rei sita was to regulate in personal succession. The Court thus meant to hold, that the succession of Mr. Scott was to be regulated universally by the lex loci rei sitæ. They had considered also, that this was a case in which collation should take place according to the law of Scotland, though Miss Scott took the real estate under the deed of her grandfather, not of her uncle.

Against this judgment Mr. Hay Balfour, Mrs. Moncrieff, and Mrs. Butler, brought their original appeal to the House of Lords; and Miss Scott brought her cross appeal against that part of the judgment which respected the collation of the real estate. The case came on to be argued in the House of Lords, soon after Lord Loughborough had received the great seal. At this period the cases of Bruce v. Bruce, and the first case of Hog v. Lashley, had been recently decided. This cause of Balfour v. Scott, which excited much interest, was pleaded by several of the eminent persons who had been of counsel in the former causes. Lord Thurlow, the late Lord Chancellor, also attended the hearing; and, after a speech on the cause, his Lordship moved the following judgment, on the 11th April 1793:

"Ordered and adjudged, that the original appeal be dismissed, and that so much of the interlocutors as complained of by the cross appeal be reversed; and it is declared, that the said Henrietta Scott is entitled to claim her distributive share in the whole personal estate of her said unele, David Scott of Scotstarvet in Scotland, without collating his heritable estate, to which she succeeded as heir, in so much as she claimed the said share of the said

(0) Antè, p. 101.

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